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Colin James’s paper to the Reconstituting the Constitution conference, Institute of Policy Studies/Centre for Public Law, 3 September 2010

New Zealand was for a long time attached to Australia or, rather, was under the sea next to Australian Gondwanaland,. It was briefly part of Australia when incorporated in the colony of New South Wales before the Treaty of Waitangi made it a separate colony. It chose to stay out of Australia when the continental colonies federated in 1900 but under section 6 was designated a colony of the Commonwealth of Australia and could therefore, at least in theory, choose to join as a state (provided section 6 is not amended to exclude New Zealand).

Federation was off the agenda through the twentieth century as the two emerging and then independent countries pursued separate, even if often parallel, agendas. The relationship at times resembled a triangle, with a thin line between them and two thick lines from each to Britain. This began slowly to change from the mid-1960s as the two economies evolved, as jet aircraft made travel between the two countries once again as easy as within them, as it had been before steam travel, and then in the 1970s as Britain contracted into Europe.

The re-meshing of the two societies and economies has revived talk on both sides of the Tasman of federation or some other form of constitutional or quasi-constitutional reconnection, as in a confederation (perhaps involving also some South Pacific countries) or by way of a proliferation of supranational joint agencies.

But coincidental with the re-meshing has been a differentiation. The relationship is both foreign and family.

Many factors make us family:–

1. History: The two countries share a British heritage, which, so far as it directly relates to the constitution, includes a monarch, representative democracy with an executive accountable to Parliament, the common law and independent courts.

2. Geography: Australia borders, and New Zealand is in, the south-west Pacific. They are major players in the South Pacific Forum. Both are on the periphery of Asia and within the emerging Chinese economic and political sphere of influence.

4. Colonisation and empire: Both were colonised by Britain. Colonists brought with them ideas and ideals of progress, social mobility and enlightenment. Australia’s beginnings as a penal colony are often cited as a trans-Tasman difference but many convicts came to New Zealand after release. Both colonies initially suppressed their indigenous peoples, though in different ways. Both were long part of the British empire and members of the “old” — that is, white — Commonwealth, successor to the empire.

5. Society: Familial links have multiplied since the advent of cheaper, more convenient transport across the Tasman. Half a million Australians were born in New Zealand, large numbers of Maori among them.

6. Culture: as a result of what they share in history, demography and social/familial linkages, the two peoples share a great deal in the fine arts, popular arts and day-to-day custom and language.

7. Economy: The two economies are deeply enmeshed and are set to become more enmeshed, at least over the short to medium term (five to 10 years), through the single economic market (SEM) process designed to reduce differences in the business operating environments of the two countries. This is not just a factor of globalisation: the speed and depth of the meshing has been much greater than from globalisation alone.

8. Security: Neither country could defend its territory against a determined, large aggressor. Both may face difficult choices in the transition of economic, soft and hard power in Asia from United States dominance to a shared influence in which China will play a larger and probably (say, by 2050) eventually dominant role.

9. Political and administrative: in a wide range of portfolio areas New Zealand ministers (and officials) sit in Council of Australian Governments (COAG meetings of the federal and state ministers (and officials) and these are occasionally held in New Zealand. New Zealand officials are at times involved in developing federal-state policy. (1) At relatively low levels in the bureaucracies there is pick-up-the-phone contact between Wellington and Canberra and some state capitals. A “work programme” of 20 items was agreed between the two Prime Ministers in March 2009 and a joint officials trans-Tasman outcomes implementation group oversees and periodically reports to the governments on progress. Overarching oversight is by the two Prime Minister’s departments and detailed oversight is by the Treasury in Australia and the Ministry of Economic Development in New Zealand. A protocol, initially signed in 2006 and updated in 2010, (2) requires regulators and officials responsible for the development of policy to cooperate “to ensure opportunities for deeper business integration and commercial benefits are maximised” and to inform and consult the other country about any new initiatives and resolve impediments discovered in existing law. There is cooperation between the courts on civil matters, subpoenas and criminal matters arising from competition and securities laws and also between the Australian Competition and Consumer Commission and the New Zealand Commerce Commission and between the Australian Securities and Investments Commission and the New Zealand Securities Commission. There is one joint technical agency, the Food Standards Authority which oversees food safety in each country; a joint Trans-Tasman Therapeutic Products Authority was agreed in 2007 between the two governments but blocked in the New Zealand Parliament. There is very extensive mutual recognition of standards and qualifications. These developments have constitutional overtones in that they are voluntary diminutions of sovereignty or separate jurisdiction.

These shared factors present an argument for political union: while de jure New Zealand remains sovereign, de facto that sovereignty is progressively attenuated. Australians often puzzle that New Zealand stays separate. New Zealanders generally discount union, though recent polls suggest that attitude may be softening: 24% supported union in a poll published in March 2010 and 41% thought it “worth debating”. (Of Australians 37% supported union and only 52% opposed it, versus 71% of New Zealanders.) (3)

Nevertheless, there are many factors that keep the two countries foreign to each other:–

1. Geology, flora and fauna and climate: New Zealanders and Australians are to some extent shaped by their very different physical environments and climates. One factor is that Australia’s geology has bequeathed it vast quantities of readily extractable minerals which enrich Australians but benefit New Zealanders only indirectly through Australian investment in New Zealand and Australians’ capacity to buy New Zealand goods and services (or directly, of course, if New Zealanders emigrate to Australia). New Zealand has rain and productive soils lacking in much of Australia. Australia has more sun. 2. History: Human habitation in Australia preceded that in New Zealand by 40,000-plus years. The customs, cultures and economic and social organisation of the two countries’ original inhabitants are profoundly different.

3. Geography: New Zealand is in the Pacific. Australia is on the Pacific’s periphery. Australia is close by south-east Asia and a target for people-smugglers. New Zealand is distant from Asia.

4. Asymmetry: Australia has five times more people, a sevenfold bigger economy and a landmass 29 times bigger than New Zealand. Australians know Australia is bigger and often treat New Zealanders as diminutive. Paul Kelly’s book of his 2001 television series on the centenary of federation mentioned New Zealand a total of seven times, three of those in connection with Gallipoli and all seven just fleeting mentions, some of them no more than asides, one a footnote. He did not mention New Zealand in the context of Anzus and did not mention CER at all. To ignore Australia in a 100-year history of New Zealand would be to leave too much of the history unwritten.

5. Demography: New Zealand’s Maori and general Polynesian population is large and increasingly influences custom, day-to-day culture and high culture and political custom and process and, as owners of tribal assets and members (or not) of the workforce, the economy. New Zealand is increasingly becoming a Pacific nation in ways that are not readily comprehensible to Australians. New Zealand is of the Pacific. Australia is a self-contained continent: Australia is of Australia.

6. The Treaty of Waitangi: Iwi would be likely to reject anything closer than confederation on the ground that it would, or at least could, compromise their gains and position under the Treaty of Waitangi and the special consideration of indigenous claims and rights that the Treaty has injected into New Zealand’s protocols, conventions, politics and administration.

7. Security: New Zealand’s distance from tyranny, coupled with its small size and recognition that it cannot defend its territory and its exclusive economic zone, has given it a different, and less excitable, perspective on security issues, one which has for 25 years preferred multilateral institutions to Australia’s strict alliance with the United States. An anti-nuclear stance is unthinkable to all but a tiny minority of Australians but is now embedded in most New Zealanders’ concept of the national brand. This perspective might change if the security intelligence John Key has said he has been given that people-smugglers will target New Zealand proves correct but that is conjecture at this point.

8. Global affairs: New Zealand has distinct needs in global institutions and negotiations which can be fully prosecuted only through direct representation. Climate change negotiations are an example: it is highly unlikely Australia could or would have achieved as much to meet New Zealand’s special needs in forestry, land-use change and animal methane as did New Zealand’s active diplomacy on those issues, including leading some initiatives. (4) In trade negotiations, New Zealand has specific needs in agriculture and intellectual property which, if it was part of Australia, might not be met.

9. Politics and policy: New Zealand’s politics are materially different, with a much stronger indigenous rights element (in large part, due to the demographics) and a stronger environmentalist attitude that includes a peace dimension largely absent in Australia. There are large differences in tax, regulatory and social services policy settings and in the assumptions and political culture that lie behind them.

10. Sovereignty: At the political level federation or confederation would greatly diminish the authority of the New Zealand Prime Minister and cabinet, Parliament and courts. At the level of individual citizens, whatever polls say, popular refusal to be subject to Canberra would constrain even a federation-willing Prime Minister and Parliament. This applies also to a hybrid arrangement. One option might be a federation with special provisions making New Zealand a sort of super-state (on the Scottish model), that is a quasi-confederal federation; but even if New Zealand agreed, it is hard to see why the Australian states would.

11. Diversity and subsidiarity: If in developed economies rising generations’ expectations that goods and services are personally customised increasingly changes the nature of demand for “public” services, that shift will logically require more diversity in, and decentralisation of, government decision-making and delivery of those services — services that in the twentieth century were standardised and delivered by central authorities. This would take the two countries in the opposite direction from federation.

Nevertheless, none of these factors is a conclusive barrier to federation (or quasi-confederal federation). Even taken together, they are not an insuperable obstacle to closer formal ties if there was a political or national will.

Indeed, a deep and long world recession or serious interstate conflict in east Asia or between east and south Asia or between east Asia and the United States could force New Zealand into Australia or drive the two together. The spectre of Newfoundland’s collapse into Canada hovers over the Tasman. Even without such a dramatic event, anschluss might gradually become more logical and thus more acceptable. Commonalities might come to outweigh separateness in the popular mind.

Among the commonalities might be:–

1. SEM and next steps: At some point the combination of the single economic market process, closer institutional cooperation between regulatory and judicial/quasi-judicial agencies and courts and development of joint agencies for technical matters (say, genetic modification, privacy and security in the digital age, medical ethics as nanotechnology, biogenetics and psychology merge) is likely to lead to discussion of matters which directly impinge on sovereignty. One such matter would be the closer alignment of tax systems and a common currency as ingredients in a single economy. Another would be a common border (tariffs, biosecurity measures, customs processes and visa and migrant policy). Such initiatives would further enmesh the two countries’ economies and societies, perhaps near-inextricably, and that might in time create a demand for a uniform politics and constitution to reduce friction and duplication.

2. Fiscal equity: If the westward flow of migrants continues through the next decade or two (that is, if the wage gap persists), New Zealand taxpayers and politicians may begin to ration social services, benefits and state superannuation to returning migrants because taxes they pay in Australia would not have been available to fund New Zealand services. An alternative might be to join Australia to gain a share in the fiscal fruits of the richer economy.

3. Demography and indigenous rights: If Maori (and Pasifika) continue to emigrate to Australia in large numbers, Australia’s demographic mix may come to look somewhat more like New Zealand’s. The likely continued influx of Asians in both countries would have a similar effect. And there will be pressure on both countries to provide jobs for young Melanesians, to relieve tensions and instability in Melanesian countries. Demography conceivably could thus diminish as perceived necessity for a distinct sovereignty in this country. This would be the more likely if after the settling of historical grievances under the Treaty of Waitangi is completed, policy toward Maori is driven under a general indigenous rights umbrella, which is closer to the Australian response (a response which over time is likely to gain more weight).

4. Security: A change in the security balance in east Asia might increase a perceived need for a common response; likewise, if there is instability in and between states in Asia resulting from water shortages, food shortages, resources shortages and climate change. This might in time drive much closer military and other cooperation and so reduce the difference of strategic perspective.

5. Global affairs: The difference in size has resulted in Australia being included in some forums (notably the G20 gathering of 20 leading or representative economies), from which New Zealand is excluded. New Zealand has to rely on Australia to represent it at those forums and report back from them. Would Canberra’s delegates better convey and represent New Zealand’s interests if New Zealand was a state/super-state of Australia/Australasia?

Are these pressures and tendencies likely to lead to federation in the absence of a severe economic or security shock? Most unlikely in the next 20 years. Even a version of confederation or an arrangement akin to the Scottish model within Britain are unlikely.

This is not just a matter of sovereignty sensitivities in New Zealand. Several barriers might arise even if New Zealand invoked section 6 and sought to federate. One or more states might object. The Australian Parliament might reject New Zealand’s application under section 121. The Australian government might choose to put it to a plebiscite: one way could be to put up a constitutional amendment, to be rejected or accepted, proposing to remove New Zealand from section 6. Under section 109 federal laws override inconsistent state laws and Australia might not be prepared to negotiate special exemptions from section 109 for some of New Zealand’s distinctive laws, for example, those requiring special consultation with iwi (which section 51 (xxvi) (5) could be used to resolve) or the Civil Union Act (which might be difficult under section 51 (xxi)). (6) None of these are insuperable barriers but navigating them would require determination from New Zealand and goodwill in Canberra, state capitals and the populace.

Nevertheless, the two countries are drawing closer and becoming much more closely intertwined and informally enmeshed, in social, cultural and economic interaction. Partly as a result of that but also as a result of conscious decisions and actions by politicians, government officials and tribunals and courts, the two governments are formally drawing closer. This has subtly modified the constitutional separateness to a degree near-unimaginable 30 years ago.

We are not back to 5 February 1840, as part of New South Wales. But neither are we quite the fully independent sovereign state of Westphalian inviolability we have thought we were for 40 years or so. Who really can be sure where we will be 30 years hence, on 5 February 2040?

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1. One example is in the development of uniform consumer law to replace individual states’ laws.

2. Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on the Coordination of Business Law, 2 July 2010.

3. New Zealand Herald, March 13 and 15 2010.

4. Though some initiatives are in the context of a so-far elusive global agreement.

5. “The Parliament shall … have power to make laws … with respect to … The people of any race for whom it is deemed necessary to make special laws.”

6. “The Parliament shall … have power to make laws … with respect to … marriage.”